STATE OF OHIO, Plaintiff-Appellee v. HUSTON W. HEWITT, Defendant-Appellant
Appellate Case No. 2015-CA-5
Trial Court Case No. 2014-CR-382
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY
December 30, 2015
[Cite as State v. Hewitt, 2015-Ohio-5489.]
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OPINION
Rendered on the 30th day of December, 2015.
PAUL M. WATKINS, Atty. Reg. No. 0090868, Assistant Miami County Prosecuting Attorney, 201 West Main Street, Troy, Ohio 45373 Attorney for Plaintiff-Appellee
ANDREW C. SCHLUETER, Atty. Reg. No. 0086701, 5540 Far Hills Avenue, Suite 202, Dayton, Ohio 45429 Attorney for Defendant-Appellant
WELBAUM, J.
{¶ 1} Defendant-appellant, Huston W. Hewitt, appeals from the sentence he received in the Miami County Court of Common Pleas after he was found guilty оf possessing cocaine following a no contest plea. For the reasons outlined below, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} On August 25, 2014, Hewitt was arraigned in the Miami County Municipal Court for possessing cocaine. His case was then bound over to the Miami County Court of Common Pleas. Thereafter, on October 22, 2014, a bill of information was filed charging Hewitt with one count of possessing cocaine in an amount less than five grams in violation of
{¶ 3} Hewitt initially pled not guilty to the possession charge. However, as part of a plea agreement, Hewitt later agreеd to plead no contest in exchange for the State remaining silent at sentencing. Accordingly, the trial court held a change of plea hearing on January 12, 2015, during which Hewitt entered a plea of no contest. After entering his plea, the trial court found Hewitt guilty of possessing cocaine and scheduled a sentencing hearing for February 18, 2015.
{¶ 4} At Hewitt‘s sentencing hearing, the trial court imposed a ten-month prison sentence and suspended Hewitt‘s driver‘s license for six months. The trial court also ordered Hewitt to pay court costs and restitution to the Piqua Police Department in the amount of $125 for the cost of
{¶ 5} Hewitt now appeals from his sentencе, raising two assignments of error for review. For purposes of clarity, we will address Hewitt‘s assignments of error out of order.
Second Assignment of Error
{¶ 6} Hewitt‘s Second Assignment of Error is as follows:
THE TRIAL COURT ERRED IN ORDERING APPELLANT TO PAY RESTITUTION TO A LAW ENFORCEMENT AGENCY WITHOUT HIS CONSENT.
{¶ 7} Under his Second Assignment of Error, Hewitt contends the trial court erred in ordering him to pay $125 in restitution to the Piqua Police Department for the cost of testing the drugs found inside his vehicle. Although the State also believes the trial court erred by ordering him to pay the restitution, we disagree.
{¶ 8} In support of his argument, Hewitt cites to State v. Moody, 2d Dist. Greene No. 2011-CA-29, 2013-Ohio-2234. In Moody, the appellant was a registered sex offender who was convicted of attempted failure to provide notice of a change of residence. Id. at ¶ 1. At sentencing, the trial court ordered the appellant to pay $302.94 in restitution to the Greene County Sheriff‘s Department for unknown expenses incurred in the investigation. Thereafter, the appellant appealed from the order of restitution. Id. at ¶ 9.
{¶ 9} In deciding the appeal, we noted that “[p]ursuant to
{¶ 10} The present case, however, is distinguishable from both Moody and Payne. Unlike Moody and Payne, the $125 restitution order at issue in this case accrued as a result of the Piqua Police Department sending the substance found in Hewitt‘s vehicle to MVRCL for testing. Effective October 12, 2006,
{¶ 11} Specifically,
In addition to the financial sanctions authorized or required under sections
2929.18 and2929.28 of the Revised Code and to any costs otherwise authorized or required under any provision of law, the court imposing sentence upon an offender who is convicted оf or pleads guilty toa drug abuse offense may order the offender to pay to the state, municipal, or county law enforcement agencies that handled the investigation and prosecution all of the costs that the state, municipal corporation, or county reasonably incurred in having tests performed under section 2925.51 of the Revised Code or in any other mannеr on any substance that was the basis of, or involved in, the offense to determine whether the substance contained any amount of a controlled substance if the results of the tests indicate that the substance tested contained any controlled substance. No court shall order an offender under this section to pay the costs of tests performed оn a substance if the results of the tests do not indicate that the substance tested contained any controlled substance. The court shall hold a hearing to determine the amount of costs to be imposed under this section. The court may hold the hearing as part of the sentencing hearing for the offender.
(Emphasis added.)
{¶ 12} In this case, the record indicates that the substance found in Hewitt‘s vehicle yielded positive results for cocaine when it was initially field tested. Following the field test, the substance was sent to MVRCL for additional testing. The presentence investigation report noted that the MVRCL analysis cost $125. The report also noted that the author of the report “was not in receipt of the final [lab] results at the submission of this report[.]” The final results were not otherwise incorporated in the record; however, we presume the MVRCL test results showed positive results for cocaine since: (1) Hewitt pled no contest to possessing cocaine and admitted during the presentence investigation that he had cocaine in his car;1 and (2) the initial field test showed positive results for cocaine. Based on these circumstances, it would not have been an abuse of discretion for the trial court to make the same presumption at sentencing when it ordered Hewitt to pay the cost of the MVRCL analysis. In addition, the cost of the MVRCL analysis was discussed, albeit briefly, as part of the sentencing hearing and was clearly stated in the presentence investigation report that was reviewed by the trial court. Accordingly, under
{¶ 13} Hewitt‘s Second Assignment of Error is overruled.
First Assignment of Error
{¶ 14} Hewitt‘s First Assignment of error is as follows:
THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING APPELLANT TO A NEAR-MAXIMUM SENTENCE.
{¶ 15} Under his First Assignment of Error, Hewitt claims the trial court‘s decision to impose a ten-month prison sentence was an abuse of discretion because the court weighed the sentencing factors in
{¶ 16} In reviewing felony sentences, this court now applies
The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court‘s stаndard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section
2929.13 , division (B)(2)(e) or (C)(4) of section2929.14 , or division (I) of section2929.20 of the Revised Code, whichever, if any, is relevant;(b) That the sentence is otherwise contrary to law.
{¶ 17} ” ‘[C]ontrary to law’ means that a sentencing decision manifestly ignores an issue оr factor which a statute requires a court to consider.” (Citation omitted.) State v. Lofton, 2d Dist. Montgomery No. 19852, 2004-Ohio-169, ¶ 11. “[A] sentence is not contrary to law when the trial court imposes a sentence within the statutory range, after expressly stating that it had considered the purposes and principles of sentencing set forth in
{¶ 18} Hewitt concedes that his sentence cannot be modified or vacаted under the standard of review set forth in
{¶ 19} “A trial court abuses its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary. An abuse of discretion includes a situation in which a trial court did not engage in a ’ “sound reasoning process.” ’ Abuse-of-discretion review is deferential and does not permit an appellate court to simply substitute its judgment for that of the trial court.” (Citatiоns omitted.) State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34, quoting State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14, quoting AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
{¶ 20} As previously noted, Hewitt contends his ten-month prison sentence was an abuse of discretion because the trial court weighed the seriousness and recidivism factors in
{¶ 21} With respect to genuine remorse, the trial court was not obligated to believe Hewitt‘s claim that he was remorseful, as the court was free to determine the remorseful factor for itself, and it was not obligated to weigh the factor in Hewitt‘s favor. Hewitt‘s claim otherwise is simply incorrect.
{¶ 22} As for the trial court‘s finding that Hewitt caused the victim serious economic harm, we find the trial court partially rectified the finding on the record after Hewitt‘s trial counsel objected to it at the sentencing hearing. In response to Hewitt‘s objection, the author of the presentence investigation report clarified that the finding was made in the report as a result of the Piqua Police Department‘s economic loss. Thereafter, the trial court noted the clarification on the record and stated it was “the economic harm that [was] the result of Defendant‘s conduct.” Sentencing Trаns. (Feb. 18, 2015), p. 14. We find that this statement sufficiently negated the trial court‘s initial finding that the economic harm suffered by the Police Department was serious; therefore, that finding no longer had any effect.
{¶ 23} Nevertheless, the trial court‘s modified finding still implies that the Piqua Police Department was a victim that suffered economic harm. A law enforcement agency cannot be characterized as a victim entitled to restitution as the result of economic harm that arose out of its investigation of the offense. State v. Jones, 7th Dist. Jefferson Nos. 08 JE 20, 08 JE 29, 2010-Ohio-2704, ¶ 44-47 (“the government or a police department is not a victim merely because they expended funds in order to gather evidence against the offender“), citing State v. Samuels, 4th Dist. Washington No. 03CA8, 2003-Ohio-6106, ¶ 5. (Other citation omitted.) Accord State v. Christian, 2d Dist. Montgomery No. 25256, 2014-Ohio-2672, ¶ 126-129, vacated on other grounds, 143 Ohio St.3d 417, 2015-Ohio-3374, 38 N.E.3d 888.
{¶ 24} Regardless, we find the trial court‘s error in characterizing the Piqua Police Department as a victim is harmless error. We come to this conclusion because pursuant to
{¶ 25} Also, upon reviewing the record, we find that Hewitt‘s extensive criminal history is, by itself, a reasonable basis to affirm his ten-month prison sentence, as thе trial court summarized his lengthy criminal record as follows:
I had a chance to look over the PSI that was done by Ms. Scott, and some things to be noted are your extensive criminal record both as a juvenile and as well as an adult. Specifically in 1993 you had an Assault charge in Juvenile Court where you received four hours of Community Service, and 1995 you had another Assault where you also received twelve hours of Community Service. In 1996 you had an Assault with twelve hours Community Service. In 1995 you had a Robbery where you were placed on probation and were—did a temporary stint at the DYS. Again in 1996 you had Criminal * * * Damaging and a Contempt charge and conviction and where you got twelve and twenty hours of Community Service. Again in ‘97 you had another Assault, twelve hours of Community Service; 1998 a Squealing Tires and Criminal Damaging where those were brought to the Juvenile Court‘s attention. You received fines and costs and had to pay restitution. * * * Now as an adult you had a Felonious Assault case which was bound over in 2000. And as part of that incident you had an Aggravated Assault where you served twelve months in ODRC [.] * * *
Let‘s see—again in 2002 you had аn Assault, which was amended to Attempted Assault, did a hundred twenty-eight days (sic) sentence, as well as a ninety day sentence with fines and costs. In 2005 you had a Disorderly Conduct which was amended from an Assault, thirty days suspended. 2005 an Open Container. 2006 a DUI/Physical Control and Reasonable Control, thirty days suspended as well as fines and costs. 2007 you were convicted of * * * Willful Wanton Disregard оf Property as well as—that was well just that one charge where you received a one-year probation sentence. 2007 Disorderly Conduct, amended from an Assault, thirty days suspended. 2008 Disorderly Conduct, fines and costs. 2008 Disorderly Conduct, fines and costs. 2009 Obstructing Official Business, fines and costs; 2010 Disorderly Conduct, again in 2010 an Attempted Assault where you received probation and had a revocation hearing and put back on probation as well. 2010 a Disorderly Conduct, fines and costs. 2011 Domestic Violence, thirty days suspended. 2012 an OVI, another 2012 Assault—two counts, a hundred eighty – eighty days suspended, placed on probation, fines, costs, restitution. 2012 a Menacing that was part of your two years’ probation in the earlier charge. As part of this incident you had the Physical Control, While Under the Influence, which you noted as being currently on probation through Municipal Court.
Sentencing Trans. (Feb. 18, 2015), p. 6-9.
{¶ 26} For the foregoing reasons, we do not find the trial court abused its discretion when it weighed the seriousness and recidivism factors in
{¶ 27} Hewitt‘s First Assignment of Error is overruled.
Conclusion
{¶ 28} Having overruled both assignments of error raised by Hewitt, the judgment of the trial court is affirmed.
HALL, J., concurs.
DONOVAN, J., concurring in part and dissenting in part:
{¶ 29} I disagree with the majority‘s resolution of the second assignment of error. The PSI lists a single seriousness factor out of nine factors. Specifically, it
{¶ 30} Assuming arguendo, the court modified its finding from “serious economic harm” to “economic harm” (a fact which is not clear to this author), the law, in my view, is clear that the Piqua Police Department cannot be chаracterized as a “victim” under
{¶ 31} The question of who constitutes a victim under
{¶ 32} Accordingly, I would reverse and remand for resentencing as to the restitution issue.
Copies mailed to:
Paul M. Watkins
Andrew C. Schlueter
Hon. Jeannine N. Pratt